To amend the Fair Labor Standards Act of 1938 to prohibit
discrimination in the payment of wages on account of sex, race, or national
origin, and for other purposes.

1.

Short title

(a)

Short
title

This Act may be cited as the Fair Pay Act of 2011.

(b)

Reference

Except
as provided in section 8, whenever in this Act an amendment or repeal is
expressed in terms of an amendment to, or repeal of, a section or other
provision, the reference shall be considered to be made to a section or other
provision of the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et
seq.).

2.

Findings

Congress finds the following:

(1)

Wage rate
differentials exist between equivalent jobs segregated by sex, race, and
national origin in Government employment and in industries engaged in commerce
or in the production of goods for commerce.

(2)

The existence of
such wage rate differentials—

(A)

depresses wages
and living standards for employees necessary for their health and
efficiency;

Discrimination in
hiring and promotion has played a role in maintaining a segregated work
force.

(4)

Many women and
people of color work in occupations dominated by individuals of their same sex,
race, and national origin.

(5)(A)

In 2009, a woman in the
United States working in a full-time, year-round job earned 77 cents for every
dollar earned by a man working in a full-time, year-round job.

(B)

A 2007 study found that—even when
accounting for key factors generally known to influence earnings such as race,
educational attainment, and experience—nearly half (49.3 percent) of the pay
gap can be explained by differences in the industries and occupations that men
and women work in, and 41 percent of the pay gap cannot be accounted for but
may be partially explained by discrimination in the workplace.

(6)

Section 6(d) of
the Fair Labor Standards Act of 1938 prohibits discrimination in compensation
for equal work on the basis of sex.

(7)

Artificial
barriers to the elimination of discrimination in compensation based upon sex,
race, and national origin continue to exist more than 4 decades after the
passage of section 6(d) of the Fair Labor Standards Act of 1938, the Equal Pay
Act of 1963, and the Civil Rights Act of
1964 (42 U.S.C. 2000a et seq.). Elimination of such barriers would
have positive effects, including—

(A)

providing a
solution to problems in the economy created by discrimination through wage rate
differentials;

(B)

substantially
reducing the number of working women and people of color earning low wages,
thereby reducing the dependence on public assistance; and

(C)

promoting stable
families by enabling working family members to earn a fair rate of pay.

3.

Equal pay for
equivalent jobs

(a)

Amendment

Section
6 (29 U.S.C. 206) is amended by adding at the end the following:

(h)(1)(A)

Except as provided in
subparagraph (B), no employer having employees subject to any provision of this
section shall discriminate, within any establishment in which such employees
are employed, between employees on the basis of sex, race, or national origin
by paying wages to employees in such establishment in a job that is dominated
by employees of a particular sex, race, or national origin at a rate less than
the rate at which the employer pays wages to employees in such establishment in
another job that is dominated by employees of the opposite sex or of a
different race or national origin, respectively, for work on equivalent
jobs.

(B)

Nothing in subparagraph (A) shall
prohibit the payment of different wage rates to employees where such payment is
made pursuant to—

(i)

a seniority system;

(ii)

a merit system;

(iii)

a system that measures earnings by
quantity or quality of production; or

(iv)

a differential based on a bona fide
factor other than sex, race, or national origin, such as education, training,
or experience, except that this clause shall apply only if—

(I)

the employer demonstrates
that—

(aa)

such factor—

(AA)

is job-related with respect to the
position in question; or

(BB)

furthers a legitimate business
purpose, except that this item shall not apply if the employee demonstrates
that an alternative employment practice exists that would serve the same
business purpose without producing such differential and that the employer has
refused to adopt such alternative practice; and

(bb)

such factor was actually applied and
used reasonably in light of the asserted justification; and

(II)

upon the employer succeeding under
subclause (I), the employee fails to demonstrate that the differential produced
by the reliance of the employer on such factor is itself the result of
discrimination on the basis of sex, race, or national origin by the
employer.

(C)

The Equal Employment Opportunity
Commission shall issue guidelines specifying criteria for determining whether a
job is dominated by employees of a particular sex, race, or national origin for
purposes of subparagraph (B)(iv). Such guidelines shall not include a list of
such jobs.

(D)

An employer who is paying a wage rate
differential in violation of subparagraph (A) shall not, in order to comply
with the provisions of such subparagraph, reduce the wage rate of any
employee.

(2)

No labor organization or its agents
representing employees of an employer having employees subject to any provision
of this section shall cause or attempt to cause such an employer to
discriminate against an employee in violation of paragraph (1)(A).

(3)

For purposes of administration and
enforcement of this subsection, any amounts owing to any employee that have
been withheld in violation of paragraph (1)(A) shall be deemed to be unpaid
minimum wages or unpaid overtime compensation under this section or section
7.

(4)

In this subsection:

(A)

The term labor
organization means any organization of any kind, or any agency or
employee representation committee or plan, in which employees participate and
that exists for the purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work.

(B)

The term equivalent jobs
means jobs that may be dissimilar, but whose requirements are equivalent, when
viewed as a composite of skills, effort, responsibility, and working
conditions.

by striking the
period at the end of paragraph (5) and inserting a semicolon; and

(2)

by adding after
paragraph (5) the following:

(6)

to discriminate
against any individual because such individual has opposed any act or practice
made unlawful by section 6(h) or because such individual made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing to enforce section 6(h); or

(7)

to discharge or
in any other manner discriminate against, coerce, intimidate, threaten, or
interfere with any employee or any other person because the employee inquired
about, disclosed, compared, or otherwise discussed the employee's wages or the
wages of any other employee, or because the employee exercised, enjoyed, aided,
or encouraged any other person to exercise or enjoy any right granted or
protected by section
6(h).

.

5.

Remedies

(a)

Enhanced
penalties

Section 16(b) (29 U.S.C. 216(b)) is amended—

(1)

by inserting
after the first sentence the following: Any employer who violates
subsection (d) or (h) of section 6 shall additionally be liable for such
compensatory or punitive damages as may be appropriate, except that the United
States shall not be liable for punitive damages.;

(2)

in the sentence
beginning An action to, by striking either of the
preceding sentences and inserting any of the preceding sentences
of this subsection;

(3)

in the sentence
beginning No employees, by striking No employees
and inserting Except with respect to class actions brought under
subsection (f), no employee;

(4)

in the sentence
beginning The court in, by striking in such
action and inserting in any action brought to recover the
liability prescribed in any of the preceding sentences of this
subsection; and

(5)

by striking
section 15(a)(3) each place it occurs and inserting
paragraphs (3), (6), and (7) of section 15(a).

(b)

Action by
secretary

Section 16(c) (29 U.S.C. 216(c)) is amended—

(1)

in the first
sentence—

(A)

by inserting
or, in the case of a violation of subsection (d) or (h) of section 6,
additional compensatory or punitive damages, before and the
agreement; and

(B)

by inserting
before the period the following: , or such compensatory or punitive
damages, as appropriate;

(2)

in the second
sentence, by inserting before the period the following: and, in the case
of a violation of subsection (d) or (h) of section 6, additional compensatory
or punitive damages; and

(3)

in the third
sentence, by striking the first sentence and inserting
the first or second sentence.

(c)

Fees

Section
16 (29 U.S.C. 216) is amended by adding at the end the following:

(f)

In any action
brought under this section for a violation of section 6(h), the court shall, in
addition to any other remedies awarded to the prevailing plaintiff or
plaintiffs, allow expert fees as part of the costs. Any such action may be
maintained as a class action as provided by the Federal Rules of Civil
Procedure.

.

6.

Records

(a)

Records

Section
11(c) (29 U.S.C. 211(c)) is amended—

(1)

by inserting
(1) after (c); and

(2)

by adding at the
end the following:

(2)

Every employer subject to section
6(h) shall preserve records that document and support the method, system,
calculations, and other bases used by the employer in establishing, adjusting,
and determining the wage rates paid to the employees of the employer. Every
employer subject to section 6(h) shall preserve such records for such periods
of time, and shall make such reports from the records to the Equal Employment
Opportunity Commission, as shall be prescribed by the Equal Employment
Opportunity Commission by regulation or order as necessary or appropriate for
the enforcement of the provisions of section 6(h) or any regulation promulgated
pursuant to section
6(h).

.

(b)

Small business
exemptions

Section 11(c) (as amended by subsection (a)) is
further amended by adding at the end the following:

(3)

Every employer subject to section
6(h) that has 25 or more employees on any date during the first or second year
after the effective date of this paragraph, or 15 or more employees on any date
during any subsequent year after such second year, shall, in accordance with
regulations promulgated by the Equal Employment Opportunity Commission under
paragraph (8), prepare and submit to the Equal Employment Opportunity
Commission for the year involved a report signed by the president, treasurer,
or corresponding principal officer, of the employer that includes information
that discloses the wage rates paid to employees of the employer in each
classification, position, or job title, or to employees in other wage groups
employed by the employer, including information with respect to the sex, race,
and national origin of employees at each wage rate in each classification,
position, job title, or other wage
group.

.

(c)

Protection of
confidentiality

Section 11(c) (as amended by subsections (a) and
(b)) is further amended by adding at the end the following:

(4)

The rules and regulations promulgated
by the Equal Employment Opportunity Commission under paragraph (8), relating to
the form of such a report, shall include requirements to protect the
confidentiality of employees, including a requirement that the report shall not
contain the name of any individual
employee.

.

(d)

Use;
inspections; examination; regulations

Section 11(c) (as amended
by subsections (a) through (c)) is further amended by adding at the end the
following:

(5)

The Equal Employment Opportunity
Commission may publish any information and data that the Equal Employment
Opportunity Commission obtains pursuant to the provisions of paragraph (3). The
Equal Employment Opportunity Commission may use the information and data for
statistical and research purposes, and compile and publish such studies,
analyses, reports, and surveys based on the information and data as the Equal
Employment Opportunity Commission may consider appropriate.

(6)

In order to carry out the purposes of
this Act, the Equal Employment Opportunity Commission shall by regulation make
reasonable provision for the inspection and examination by any person of the
information and data contained in any report submitted to the Equal Employment
Opportunity Commission pursuant to paragraph (3).

(7)

The Equal Employment Opportunity
Commission shall by regulation provide for the furnishing of copies of reports
submitted to the Equal Employment Opportunity Commission pursuant to paragraph
(3) to any person upon payment of a charge based upon the cost of the
service.

(8)

The Equal Employment Opportunity
Commission shall issue rules and regulations prescribing the form and content
of reports required to be submitted under paragraph (3) and such other
reasonable rules and regulations as the Equal Employment Opportunity Commission
may find necessary to prevent the circumvention or evasion of such reporting
requirements. In exercising the authority of the Equal Employment Opportunity
Commission under paragraph (3), the Equal Employment Opportunity Commission may
prescribe by general rule simplified reports for employers for whom the Equal
Employment Opportunity Commission finds that because of the size of the
employers a detailed report would be unduly
burdensome.

Section 4(d) (29 U.S.C. 204(d)) is amended
by adding at the end the following:

(4)

The Equal Employment Opportunity
Commission shall conduct studies and provide information and technical
assistance to employers, labor organizations, and the general public concerning
effective means available to implement the provisions of section 6(h)
prohibiting wage rate discrimination between employees performing work in
equivalent jobs on the basis of sex, race, or national origin. Such studies,
information, and technical assistance shall be based on and include reference
to the objectives of such section to eliminate such discrimination. In order to
achieve the objectives of such section, the Equal Employment Opportunity
Commission shall carry on a continuing program of research, education, and
technical assistance including—

(A)

conducting and promoting research with
the intent of developing means to expeditiously correct the wage rate
differentials described in section 6(h);

(B)

publishing and otherwise making
available to employers, labor organizations, professional associations,
educational institutions, the various media of communication, and the general
public the findings of studies and other materials for promoting compliance
with section 6(h);

(C)

sponsoring and assisting State and
community informational and educational programs; and

(D)

providing technical assistance to
employers, labor organizations, professional associations and other interested
persons on means of achieving and maintaining compliance with the provisions of
section 6(h).

(5)

The report submitted biennially by
the Secretary to Congress under paragraph (1) shall include a separate
evaluation and appraisal regarding the implementation of section
6(h).

by striking
subsections (a)(1) and (d) of section 6 and inserting
subsections (a)(1), (d), and (h) of section 6; and

(B)

by striking
206 (a)(1) and (d) and inserting 206 (a)(1), (d), and
(h).

(2)

Remedies

Section
203(b) of such Act (2 U.S.C. 1313(b)) is amended by inserting before the period
the following: or, in an appropriate case, under section 16(f) of such
Act (29 U.S.C. 216(f)).

(b)

Executive
branch employees

(1)

Application

Section
413(a)(1) of title 3, United States Code, as added by section 2(a) of the
Presidential and Executive Office Accountability Act (Public Law 104–331; 110
Stat. 4053), is amended by striking subsections (a)(1) and (d) of
section 6 and inserting subsections (a)(1), (d), and (h) of
section 6.

(2)

Remedies

Section
413(b) of such title is amended by inserting before the period the following:
or, in an appropriate case, under section 16(f) of such
Act.

9.

Effective
date

The amendments made by
this Act shall take effect 1 year after the date of enactment of this
Act.